MARCELO ENRIQUEZ, PETITIONER, VS. HIGINIO B. MACADAEG, JUDGE OF THE COURT OF FIRST INSTANCE OF CEBU, MELITON YBURAN, AND THE PHILIPPINE NATIONAL BANK, RESPONDENTS.

This is a petition for a writ of mandamus to compel the
respondent judge to dismiss a civil action pending in his court.

The civil action in question is for the recovery of a piece of
real property situated in Negros Oriental, the complaint alleging that the said
property had been bought by plaintiff at an execution sale but that,
notwithstanding the sale, the judgment debtor, as supposed owner of said
property, subsequently mortgaged the same to the Philippine National Bank and
refused to surrender possession thereof to plaintiff, whereupon, the latter
brought suit (Meliton Yburan vs. Marcelo Enriquez and The Philippine National
Bank, civil case No. R-552 of the Court of First Instance of Cebu) to have
himself declared owner of said property and placed in possession thereof. Before
filing their answer, the defendants in that case moved for the dismissal of the
complaint on the ground, among others, that, as the action concerned title to
and possession of real estate situated in Negros Oriental, venue was improperly
laid in the Court of First Instance of Cebu. The motion having been denied, the
defendants filed the present petition for mandamus to compel the respondent
judge to dismiss the action.

Answering the petition, the respondent judge puts up the
defense that the act sought to be ordered involves the exercise of judicial
discretion and that petitioner has another adequate remedy, which is by
appeal.

Section 3 of Rule 5 of the Rules of Court requires that actions
affecting title to or recovery of possession of real property be commenced and
tried in the province where the property lies, while paragraph 1 (b) of
Rule 8, provides that defendant may, within the time for pleading, file a motion
to dismiss the action when “venue is improperly laid.” As the action sought to
be dismissed affects title to and the redovery of possession of real property
situated in Negros Oriental, it is obvious that the action was improperly
brought in the Court of First Instance of Cebu. The motion to dismiss was
therefore proper and should have been granted.

But, while the respondent judge committed a manifest error in
denying the motion, mandamus is not the proper remedy for correcting that error,
for this is not a case where a tribunal “unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an office” or
“unlawfully excludes another from the use and enjoyment of a right.” (Sec. 3,
Rule 67, Rules of Court.) It is rather a case where a judge is proceeding in
defiance of the Rules of Court by refusing to dismiss an action which should not
be maintained in his court. The remedy in such case is prohibition (section 2,
Rule 67), and that remedy is available in the present case because the order
complained of, being merely of an interlocutory nature, is not appealable.

While the petition is for mandamus, the same may well be
treated as one for prohibition by waiving strict adherence to technicalities in
the interest of a speedy administration of justice pursuant to section 2, Rule
1, Rules of Court.

Wherefore, let a writ of prohibition issue, enjoining the
respondent judge or his successor from taking cognizance of this case unless it
be to dismiss the same in accordance with the Rules. Without costs. So
ordered.

Ozaeta, Paras, Feria, Bengzon, Padilla, Tuason,
Montemayor, and Torres, JJ., concur.

MORAN, C. J.:

I concur in the result.